Kundiger v. Prudential Ins. Co. of America

• Decision Date: 22 December 1944
• Docket Number: No. 33799.,33799.
• Citation: 219 Minn. 25,17 N.W.2d 49
• Parties: KUNDIGER v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Minnesota Supreme Court

17 N.W.2d 49

219 Minn. 25

KUNDIGER v. PRUDENTIAL INS. CO. OF AMERICA.

No. 33799.

Supreme Court of Minnesota.

December 22, 1944.

Rehearing Denied January 4, 1945.

Appeal from District Court, Ramsey County; James C. Michael, Judge.

Action by Bertha Kundiger against the Prudential Insurance Company of America to recover double indemnity under an industrial policy insuring the life of Rein-hold Kundiger, deceased; the face amount of the policy having been paid prior to suit. Judgment was for defendant on a directed verdict, and, from a denial of a new trial, plaintiff appeals

Reversed.

Alric Anderson, of St. Paul, for appellant.

Oppenheimer, Hodgson, Brown, Donnelly & Baer, of St. Paul, for respondent.

STREISSGUTH, Justice.

Action to recover accidental death benefits under an industrial life insurance policy, its face amount having been paid prior to suit. The court at the close of the testimony directed a verdict for defendant, and plaintiff appeals from an order denying a new trial.

The policy provided that accidental death benefits could accrue only if death occurred "as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which, except in case of drowning or of internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body"; and, further, that the accidental death benefits would not be payable "if such death resulted * * * directly or indirectly from bodily or mental infirmity or disease in any form."

The general facts surrounding the death of the insured, Reinhold Kundiger, have been detailed in two previous decisions and need not be restated. See, Kundiger v. Waldorf Paper Products Co., Minn., 15 N. W.2d 486, and Kundiger v. Metropolitan L. Ins. Co., Minn., 15 N.W.2d 487. In the latter case, which we shall refer to as the Metropolitan case, under provisions of two policies of insurance substantially the same as here involved, we held that the trial court erred in ordering judgment for only the face amount of the policies notwithstanding a verdict allowing recovery for accidental death benefits as well. Unless the evidence in opposition to plaintiff's theory of recovery is of such greater weight in the instant case as to compel us to find, as a matter of law, that leukemia concurred and cooperated with trauma to cause insured's death, the same result must follow as in the Metropolitan case.

1. It is not important that the present defendant's motion was for a directed verdict in its favor rather than a motion for judgment notwithstanding a verdict for plaintiff. The sufficiency of plaintiff's evidence must be tested by the same rules in either situation, subject only to the qualification that a motion for judgment notwithstanding a verdict for plaintiff should not be granted if there is a reasonable probability that any deficiency in proof can be supplied upon a second trial. Neither motion should be granted unless there is complete absence of evidence reasonably sustaining plaintiff's claim, or unless the evidence in support of his claim is wholly incredible and unworthy of belief or so conclusively overcome by other uncontradicted evidence as to leave nothing upon which a verdict can stand. Dunnell, Dig. & Supp. §§ 5082, 9764; Kingsley v. Alden, 193 Minn. 503, 259 N.W. 7; Applequist v. Oliver Iron Mining Co., 209 Minn. 230, 296 N.W. 13; Eklund v. Kapetas, 216 Minn. 79, 11 N.W.2d 805. "If the record discloses evidence, taking the most favorable view of it for the plaintiff, sufficient to sustain a verdict for him, the motion [for a directed verdict] should not be granted." Osborn v. Will, 183 Minn. 205, 208, 236 N.W. 197, 199.

Defendant urges, however, that this case is governed by Brulla v. Cassady, 206 Minn. 398, 404, 289 N.W. 404, 407, in which we said:

"* * * Though the evidence on the part of the plaintiff standing alone would justify submitting a case to the jury, yet the court should direct a verdict for the defendant if, upon all the evidence, it would be its manifest duty to set aside a verdict against him. In other words, the court should direct a verdict in favor of a party in whose favor the evidence overwhelmingly preponderates, though there is some evidence in favor of the adverse party." See, also, Yates v. Gamble, 198 Minn. 7, 268 N.W. 670; 6 Dunnell, Dig. & Supp. § 9764.

The rule so stated is to be "cautiously and sparingly exercised." The "test is not whether the court might in the exercise of its discretion grant a new trial," but whether "it would be its manifest duty to set aside a contrary verdict." Applequist v. Oliver Iron Mining Co., 209 Minn. at page 235, 296 N.W. at page 15, supra. "Manifest duty to set aside a verdict" involves no discretion, no weighing of testimony, nor passing upon the credibility of witnesses, except in those extreme cases "where the evidence is `so overwhelmingly on one side as to leave no room to doubt what the fact is.'" Brulla v. Cassady, 206 Minn. at page 410, 289 N.W. at page 410, supra, quoting from Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 343, 53 S.Ct. 391, 395, 77 L.Ed. 819, 824.

2. Before applying these tests to the record, it is proper that we stop to consider the necessity for, and the weight to be given to, the opinions of the medical experts. The causal connection between any bodily injuries Kundiger may have sustained and his subsequent death was admittedly a highly scientific question in view of his being afflicted with leukemia. The facts were not such that lay jurors could intelligently determine from their own knowledge and experience whether the injuries, if any, which insured sustained were the sole cause of death or whether leukemia was a contributing cause; hence, without some supporting expert medical testimony, there would have been no proper foundation for a finding by the triers of facts that the injuries were the sole cause of death, and a directed verdict would have been proper. Burton v. Holden & Martin Lbr. Co., 112 Vt. 17, 20 A.2d 99, 135 A.L.R. 512. And see, Getchell v. Hill, 21 Minn. 464, 465.

The issue here, unlike that of insanity or value, was not one which the jurors should have been permitted to solve by relying upon their own judgment and experience in disregard of unimpeached opinions of experts, though such opinions involved the ultimate fact to be determined. Nevertheless, if there was expert testimony in support of plaintiff's theory as well as defendant's, the choice of which testimony to accept and which to reject was for the jury and not for the trial court, unless the testimony of all of plaintiff's experts was entirely discredited. The jury did not sit simply to count the number of expert witnesses testifying pro and con upon the technical issue involved, any more than upon an ordinary issue of fact, for "the opinion of one expert may, from proof of his greater knowledge and experience of the subject, or from his giving fuller details of the case, or more probable reasons for his opinion, be of greater value to the jury than the opposite opinions of several." Getchell v. Hill, 21 Minn. 464, 471.

The jury, it is true, could not arbitrarily have rejected the unanimous opinion of the qualified experts, based upon uncontradicted facts (Moore v. Chicago, R. I. & P. R. Co., 151 Iowa 353, 131 N.W. 30); but if there was a difference of opinion between the experts, or a dispute in the facts upon which they based their opinions, it was the jury's prerogative to adopt, if it so chose, the testimony of any one or more experts which, reasonably construed, established the necessary causal connection between injury and death. Ætna L. Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 35 L.Ed. 371, 376; Moore v. Chicago, R. I. & P. R. Co., supra; Lawson, Expert and Opinion Evidence, 2d Ed., pp. 177, 181; 20 Am.Jur., Evidence, § 867, 1206. Furthermore, the jury was not required to accept or reject the testimony of each expert in toto; his testimony, like that of any other witness, could be believed in part and disbelieved in part. People v. Vanderhoof, 71 Mich. 158, 173, 39 N.W. 28, 35; Ballam v. Metropolitan L. Ins. Co., 295 Mass. 411, 3 N.E.2d 1012, 108 A.L.R. 1. And, as pointed out in 20 Am.Jur., Evidence, § 782:

"* * * Every expert opinion rests on an assumption of fact; if the opinion is given upon a hypothetical question, its weight depends wholly on the jury finding that the assumed facts have been proved; if it is based on the expert's own testimony as to the facts, the truth of this testimony is no less open to their belief or disbelief; and, in addition, the soundness of the opinion itself is to be determined by the jury in consideration of its apparent reasonableness or their confidence in the skill and trustworthiness of the witness and of any contradiction from other experts."

3, 4. It is important to point out that, in giving their respective opinions, the medical witnesses did not all assume the same facts. Dr. S. E. Stinnette and Dr. Roy C. Heron based their opinions largely upon findings at their examinations of Kundiger and of his corpse, while Dr. James C. McCartney and Dr. Max H. Hoffman based their opinions largely, if not exclusively, upon hospital records showing Kundiger's leukemic condition and upon McCartney's findings at the post-mortem examination made three months after death. Particularly important symptoms, according to plaintiff's experts, were the presence of "a great deal of swelling and ecchymosis on the left side of the neck" and "very extensive" hemorrhages "throughout all of the tissues of the neck" and "seeping into the * * * pleural cavity, down into the mediastinal space * * * into the lungs"; but these symptoms or effects of trauma were not present, according to Dr. McCartney, when he made his post-mortem examination, and neither he nor Dr. Hoffman assumed existence of such factual data in giving their respective...